Gujarat High Court
Sudhir Agarawal vs State Of Gujarat on 5 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/2546/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2546 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SUDHIR AGARAWAL
Versus
STATE OF GUJARAT
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Appearance:
MR AS VAKIL(962) for the PETITIONER(s) No. 1
MR DHAVAL N VAKIL(3556) for the RESPONDENT(s) No. 2
PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/04/2018
ORAL JUDGMENT
1. By this application under section 482 of the Cr.P.C., 1973, the applicant-original accused No.4 and the owner of a newspaper seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case Page 1 of 31 R/CR.MA/2546/2012 JUDGMENT No.1453 of 2008 in the court of the learned Judicial Magistrate, First Class, Vishnagar arising from a private complaint lodged by the respondent No.2 herein for the offence punishable under sections 499, 500, 501 and 502 of the IPC.
2. It appears from the materials on record that the applicant is the owner, publisher and printer of a daily newspaper, namely, Divya Bhashkar, printed and published in Gujarat from Ahmedabad. In terms of section 5 of the Press & Registration of Books Act, 1867 (for short "the Act 1867), a declaration dated 1st February, 2007 was made before the Sub-Divisional Magistrate, Ahmedabad City, Ahmedabad. According to such declaration, the owner, publisher and printer of the daily newspaper Divya Bhashkar, printed and published in Gujarat from Ahmedabad, is the applicant herein and the name of the editor is one Shravan Garg. Let me straightway go to the complaint lodged by the respondent No.2. The complaint is extracted hereunder;
"The Complainant, state the facts of the complaint as under :
(1) The Complainant is residing at the aforementioned address with his family and doing business of finance and as such having agricultural land, also doing agricultural work through which earning livelihood of our family. The Complainant is having family comprising his wife, children, father and mother, residing altogether. The father of the Complainant is a social worker and doing agricultural work as mentioned hereinabove. The name of the firm of Complainant is "R.K. Finance" situated at Jyoti Building, Near Govind Chakla Char Rasta, Visnagar. The family of the Complainant is famous and identified by name "Mukhi" and having reputable social status in the society.Page 2 of 31
R/CR.MA/2546/2012 JUDGMENT (2) The Daily named "Divya Bhaskar" is being published since last 3 years or more, from Ahmedabad in the State of Gujarat. The head office of the said daily is situated at the aforementioned address and its owner is Accused No.4. Therefore, the summons issued to Accused No.1-M/s. Divya Bhaskar Corporation Limited be served upon the Accused No.4. The Accused No.2 is the ________________ and Accused No.3 is the authorized officer, as stated hereinabove whereas Accused No.4 is the printing publisher. The Complainant has stated the aforesaid information on the basis of details published at page No.6 below the Editor's Column of the daily, Divya Bhaskar dated 20.11.2007. Therefore, the Complainant has filed the present Complaint of Defamatory under the provisions of Section 499, 500, 501 and 502 of I.P.C. and in this manner they are straight accused and thereby the present Complaint has been filed against them.
(3) A news item has been published at Column No.6-7 on page no.10 in the section having heading "Mehsana Bhaskar" of the daily "Divya Bhaskar" dated 20.11.2007 with respect to Accused. The same has been published at the Bhaskar Printing Press. The details with title thereof is as under :
"Father-Son wandering as Don in Visnagar, have been arrested." - Bhaskar News, Visnagar.
In the incident of collision of a bicycle and bike near Three Tower, Visnagar, upon thrashing by a lady, a man has approached her house and threatened her to kill by stating that he is the Don of Visnagar. The Police has registered a complaint in this regard and arrested the person viz. R.D. Patel, for threatening. On the other hand, the Police has arrested the father of the said person for beating a S.T. Driver.
Earlier, on 7th November, a lady viz. Bhavsar Jagrutiben Dalpatbhai, residing at Shrinagar Society, going on a bicycle, collide with a bike rider near Three Tower whereat the excited bike rider has thrashed the said lady in presence of a Police personnel on duty. Thereafter, the said person approached the house of the lady and Page 3 of 31 R/CR.MA/2546/2012 JUDGMENT threatened to kill all of them by stating that he is a Don of Visnagar. The lady has made written complaint before the Visnagar Police Station in this regard. On the basis, the Police has investigated into the matter and has arrested the person named Patel Rajubhai Dashrathbhai who had thrashed the lady and registered the offence against him on the basis of the complaint made by the lady. On the other hand, the Visnagar Police has also arrested the father of said Rajubhai in the case of thrashing the S.T. Driver. The news of arrest of father-son for breaking law in the city has become talk of the town. The arrest of father-son for breaking law in the city has raised strong gossip in the city.
(4) The title of the aforesaid news-item stated/ treated the Complainant and his father as "Don" thereby defaming them. The word "Don" has become popular in last many years in the entire India. The word "Don" has been cropped-up from the Indian Hindi movies. Two movies with name "Don" have been produced in last 30 years and the second movie has been released in the current year itself. Through these movies, the meaning of "Don" has been famed by its thought in human psychology. Further, the word "Don" has been used for "Daud Memon" against whom warrant has been issued for international criminal activities and 1993 Bombay Blast case filed by the Government of India and the word has been used for. Therefore, looking to the history of the word "Don", its meaning has become specific as commonsense in the society. The person doing international atrocious act, mafia activities, doing international business of narcotics and smuggling and thereby disturbing the national economy and threat to national security and who is having a network for doing criminal activities through which extorting money by threats in the metro city like Mumbai. Further, the word "Don" is used to define person who used to take "Sopari"
for recovery of money or for any reasons (executing agreement for illegal criminal activities) and kill the person or his family. The person who used to spread chaos in metro cities; illegally encroach valuable and/or costly government or private land/property and construct/create illegal markets, flats and thereby raise fund, and involved in such business activities is referred by the word "Don". Further, the word "Don" is used to Page 4 of 31 R/CR.MA/2546/2012 JUDGMENT refer person who extract tribute money from big industrialists, famous personalities by threatening them. Therefore, the word "Don" is used to refer the person who is head of the business involving specific hooliganism and which is used to refer terrorism in the society, nation and international terrorism. By using/addressing such word for the complainant and his father by the accused in the title of the news-item published in the daily, "Divya Bhaskar", had caused serious defamation for them and therefore, the present complainant has been filed against the accused.
(5) The Complainant is a life-time member in The Visnagar Dimond Merchant Association, an association for diamond market. Further, doing business of finance, as mentioned above and is a well-known businessman. The Complainant's family is well-known by named "Mukhi" in their community and his father is having reputation in social and religious institutions. In the manner, the Complainant, his father and his family holds a reputed place in their society in the city of Visnagar and Mehsana District. They value reputation more than their life and by publishing such news-item thereby causing serious harm to their reputation by the accused, the Complainant is forced to file the present complaint.
(6) The news-item with respect to complaint against the Complainant is the main cause of defamation. But the word "Don" and some portions are directly cause defamation of the Complainant and which are incorrect, baseless, and tampered, for example "after thrashing the lady in public, the man has approached the house of lady and threatened to kill by stating that he is don of Visnagar". Similarly, looking to the further news, the said fact has been reiterated with modification, causing defame to the Complainant, his father and his entire family.
(7) The accused has published the news-items in a manner that such news-item is being specifically read by public and eye-catching in public. As such, the accused has published the news-item to defame the status and reputation of the Complainant and his father and with an intention to spoil the same. The accused are aware and Page 5 of 31 R/CR.MA/2546/2012 JUDGMENT there is strong reason of being aware of the fact that it will cause defame to the reputation of the Complainant. The accused has acted to derogate the moral character of the Complainant and his family and for that they have neither missed a single opportunity. The faith, goodwill and reputation of the Complainant and his family amongst their Patidar Community and his village has been derogated and leveled to the bottom. By addressing them "Don", had placed them in obnoxious state in their community. The accused have wrongly described the Complainant and his family that their act is disgraceful thereby spoil the image / status of the Complainant and his family. The accused have committed serious offence of defamation of the Complainant and his family. Being aggrieved against the same, the present complaint has been filed against the accused.
(8) The Complainant has never committed offence against the society or offence considered of downfall, till date nor any such complaint has been registered at Visnagar Police Station against him. There is no sufficient reason for the accused to publish said complaint news- item in tampered and incorrect manner. Further, the accused have not made reasonable and required investigation of the fact before publishing such news-item in the daily and has not taken care of any defamation of the Complainant, his father and his family, as stated hereinabove. In this manner, by publishing the said news- item in the newspaper and by circulating in the Visnagar, the accused have defame the Complainant and therefore, the Complainant has filed the present Complaint against the accused for the offence under Section 499, 500, 501 and 502 of the I.P.C. The present Complaint is within the jurisdiction of this Court and accordingly listed for hearing.
The Complainant therefore, prays as under :
By taking into consideration the facts of the aforesaid complaint and documents produced, admit the present complaint under Section 500, 501 and 502 against the accused, issue summons upon them, prosecute them and impose sentence and penalty upon them. The details of our witnesses are as under :Page 6 of 31
R/CR.MA/2546/2012 JUDGMENT
(1) The Complainant-himself
(2) The father of the Complainant-Shri
Dashrathbhai Hargovandas Patel
(3) Leaders of our community
(4) Business friends, doing similar business of finance (5) President of Diamond Market Association (6) Family members of the Complainant and his relatives (7) Witnesses in summons, who deem fit and proper during the hearing."
3. It appears that the Judicial Magistrate, First Class, Vishnagar took cognizance upon the complaint and thought fit to order Magisterial Inquiry under section 202 of the Cr.P.C.
4. At the end of the Magisterial Inquiry under section 202, the learned Magistrate thought fit to issue process to the applicant herein and the other co-accused for the offences enumerated above.
5. Being dissatisfied with the order of issue of process, the applicant is here before this Court.
6. On 5th March, 2012, this Court passed the following order;
"Heard Mr. S.N.Soparkar, learned senior advocate with Mr. A.S.Vakil, for the applicant and it is submitted that in view of definition containing in Section 1(1) of the Press and Registration of Books Act, 1867 (in short " Act of Page 7 of 31 R/CR.MA/2546/2012 JUDGMENT 1867") 'Editor' means the person who controls the selection of the matter that is published in a newspaper. In addition to above Section 7 of the said Act is pertaining to legal proceedings namley, Civil as well as Criminal to be instituted against a person who is declared to be Editor as required under Section 5 of the said Act and decision in the case of Tathagata Satpathy and Anr. v. Priyabrata Patnaik and Anr. [2010 (2) OLR 512] and decision dated 22.12.2011 in Criminal Misc. No. 30154 of 2010 of Punjab and Haryana High Court in the case of Ramesh Chand Aggarwal v. State f Haryana & Ors., in which, reliance is placed on the decision of H.K. Dua v. Chander Mohan [2008 (3) RCR (Criminal) 64] of which the decision of Haji C.H. Mohammad Koya v. T.K.S.M.A.Muthukoya [AIR 1979 SC 154] is relied.
In view of the above, it is submitted that as per Annexure 'B' to the petition Editors name as per the declaration filed under Section 5 of the above Act is one Mr. Shravan Garg and not the applicant.
In view of the above, issue Notice returnable on 16.3.2012.
Learned APP, waives service of notice on behalf of respondent No.1.
Direct service qua respondent No.2 is permitted."
7. Let me also look into the alleged defamatory article published in the newspaper which gave rise to the cause of action to the respondent No.2 to file a criminal complaint for the offence of defamation.
"Father-Son,Duo arrested Moving around as Don in Visnagar Bhaskar News, Visnagar.
In the incident of collision of a bicycle and bike near Three Tower, Visnagar, upon thrashing by a lady, a man has approached her house and threatened her to kill by Page 8 of 31 R/CR.MA/2546/2012 JUDGMENT stating that he is the Don of Visnagar. The Police has registered a complaint in this regard and arrested the person viz. R.D. Patel, for threatening. On the other hand, the Police has arrested the father of the said person for beating a S.T. Driver.
Earlier, on 7th November, a lady viz. Bhavsar Jagrutiben Dalpatbhai, residing at Shrinagar Society, going on a bicycle, collide with a bike rider near Three Tower whereat the excited bike rider has thrashed the said lady in presence of a Police personnel on duty. Thereafter, the said person approached the house of the lady and threatened to kill all of them by stating that he is a Don of Visnagar. The lady has made written complaint before the Visnagar Police Station in this regard. On the basis, the Police has investigated into the matter and has arrested the person named Patel Rajubhai Dashrathbhai who had thrashed the lady and registered the offence against him on the basis of the complaint made by the lady. On the other hand, the Visnagar Police has also arrested the father of said Rajubhai in the case of thrashing the S.T. Driver. The news of arrest of father-son for breaking law in the city has become talk of the town. The arrest of father-son for breaking law in the city has raised strong gossip in the city."
8. It appears from the materials on record that on 7th November, 2007, collision took place at the Visnagar Town between one Jagrutiben Dalpatbhai Bhavsar who was riding her bicycle and the complainant who was riding his scooter. Such collision led to an altercation between Jagrutiben and the complainant. On 16th November, 2007, the complainant is said to have visited the house of Jagrutiben and threatened Jagrutiben and her parents with dire consequences. The complainant herein claimed himself to be the "Dada" of the Visnagar Town.
9. In such circumstances, referred to above, Jagrutiben lodged a first information report dated 18th November, 2007 at Page 9 of 31 R/CR.MA/2546/2012 JUDGMENT the Local Police Station which came to be registered as C.R. No.298 of 2007 for the offence punishable under sections 504 and 506(2) of the IPC. The first information report is extracted hereunder;
"My name is Jagrutiben daughter of Dalpatbhai Mangaldas, by caste Bhavsar, Aged 35, Occupation Household, residing at: Chotris, Shrinagar Society, Mehsana Road, Visnagar.
On being asked in person, I state that I am residing at the abovementioned address along with my father and I am doing household chores and I am pursuing I.C.I. (Nursing Course) at Jyoti Hospital, Visnagar.
One application was read over to me as on today by your good-self, which was filed by me on 07.11.07 against the Opponent driver of the Scooter bearing No.GJ-2-AC-640. Later when I inquired about the Opponent, I have come to known that his name is Patel Rajubhai Dashrathbhai, resident of Umiyanagar Society, N.M. College Road, Visnagar. On last 7.11.07, at around five thirty hours, on the road near Tran Darwaja Tower, my bicycle was touched to the scooter of said Rajeshbhai Patel and therefore, altercation took place. Thereafter, the said Rajeshbhai Patel came to my house and threatened me and my mother - father with dire consequences and a day before yesterday, at around seven o'clock; he has threatened me that you shall withdraw the complaint, you do not know me, I am the Dada (ruffian) of Visnagar and hence, I am filing the present complaint against him and while leaving the place, he had given me the threats and had abused me.
The facts of my complaint as narrated above are true and correct."
10. The registration of the first information report, referred to above, led to the publication of of a news item in this regard. It is the case of the complainant that thereby he himself and his son came to be defamed by the applicant being the owner Page 10 of 31 R/CR.MA/2546/2012 JUDGMENT of the newspaper and his entire team who have been arraigned as the co-accused.
11. Mr. S.N. Soparkar, the learned senior counsel appearing with Mr. A.S. Vakil, the learned counsel for the applicant vehemently submitted that the applicant, being the publisher, printer and owner, cannot be held liable or responsible for the alleged defamatory article. It is submitted that the selection of any article to be printed in the newspaper is the job of the editor. The term "editor" as defined in section 1(1) of the Act, 1867 means a person who controls the selection of the matter that is published in a newspaper. Mr. Soparkar submitted that the fact that the name of the editor was separately mentioned in the declaration made under section 5 of the Act, 1867 and the name of the printer and publisher was also separately mentioned would demonstrate that the editor was the person who controlled the selection of the matter/news item/the alleged defamatory article published in the newspaper.
12. Mr. Soparkar submitted that the prosecution of the applicant for the alleged offence of defamation is nothing but gross abuse of the process of law. It is further submitted that, nowhere in the complaint, it has been alleged that although the applicant is the owner, printer and publisher, yet he had participated actively along with the editor for the purpose of publishing the alleged defamatory article. To put it in other words, there are no allegations in the complaint that the applicant, being the publisher, printer and owner, had the requisite knowledge that the editor of the newspaper is going to publish a defamatory article and the applicant, directly or indirectly, permitted the editor to do so. It is submitted that in Page 11 of 31 R/CR.MA/2546/2012 JUDGMENT the absence of any such specific allegations in this regard, no criminal liability can be fastened on the applicant.
13. In such circumstances, referred to above, the learned senior counsel prays that there being merit in this application, the same be allowed and the complaint and the order of process be quashed so far as the applicant herein is concerned.
14. On the other hand, this application has been vehemently opposed by Mr. D.N. Vakil, the learned counsel appearing for the respondent No.2-original complainant. The learned counsel appearing for the complainant would submit that more than a prima facie case could be said to have been made out to put the applicant herein on trial for the offence of defamation. The learned counsel would submit that all the necessary ingredients to constitute the offence of defamation are spelt out on plain reading of the complaint. It is submitted that the offence stood completed, the day, the defamatory article came to be published in the newspaper in question. In such circumstances, referred to above, the learned counsel appearing for the complainant prays that there being no merit in this application, the same be rejected.
15. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the learned Magistrate committed any error in issuing process to the applicant herein for the offence of defamation.
16. Section 499 IPC defines the offence of defamation. It Page 12 of 31 R/CR.MA/2546/2012 JUDGMENT contains 10 exceptions and 4 explanations. The relevant portion reads;
"Section 499. Defamation.-- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person."
17. An analysis of the above reveals that to constitute an offence of defamation it requires a person to make some imputation concerning any other person;
(I) Such imputation must be made either (a) With intention, or (b) Knowledge, or (c) Having a reason to believe
that such an imputation will harm the reputation of the person against whom the imputation is made.
(ii) Imputation could be, by (a) Words, either spoken or written, or (b) By making signs, or (c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and publishing the same is:
Page 13 of 31R/CR.MA/2546/2012 JUDGMENT If 'X' tells 'Y' that 'Y' is a criminal - 'X' makes an imputation. If 'X' tells 'Z' that 'Y' is a criminal - 'X' publishes the imputation.
The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made.
18. Committing any act which constitutes defamation under Section 499 IPC is punishable offence under Section 500 IPC. Printing or engraving any defamatory material is altogether a different offence under Section 501 IPC. Offering for sale or selling any such printed or engraved defamatory material is yet another distinct offence under Section 502 IPC.
19. If the content of any news item carried in a newspaper is defamatory as defined under Section 499 IPC, the mere printing of such material "knowing or having good reason to believe that such matter is defamatory" itself constitutes a distinct offence under Section 501 IPC. The sale or offering for sale of such printed "substance containing defamatory matter"
"knowing that it contains such matter" is a distinct offence under Section 502 IPC.
20. Whether an accused (such as the respondent) against whom a complaint is registered under various Sections of the IPC (Sections 500, 501 & 502 IPC) could be convicted for any of those offences depends upon the evidence regarding the existence of the facts relevant to constitute those offences.
Page 14 of 31R/CR.MA/2546/2012 JUDGMENT
21. In the context of the facts of the present case, first of all, it must be established that the matter printed and offered for sale is defamatory within the meaning of the expression under Section 499 IPC. If so proved, the next step would be to examine the question whether the accused committed the acts which constitute the offence of which he is charged with the requisite intention or knowledge etc. to make his acts culpable.
22. Answer to the question depends upon the facts. If the respondent is the person who either made or published the defamatory imputation, he would be liable for punishment under Section 500 IPC. If he is the person who "printed" the matter within the meaning of the expression under Section 501 IPC. Similarly to constitute an offence under Section 502 IPC, it must be established that the respondent is not only the owner of the newspaper but also sold or offered the newspaper for sale.
23. Let me now look into the provisions of the Press & Registration of Books Act (25 of 1867).
24. The Preamble to the Press Act runs thus:-
"Whereas it is expedient to provide for the regulation of printing-presses and of newspapers, for the preservation of copies of every book and newspaper printed in India and for the registration of such books and newspaper, it is hereby enacted as follows":
25. It would thus appear that the object of the Press Act was to regulate printing presses and newspapers in order to preserve copies of newspapers and books. Moreover, in order Page 15 of 31 R/CR.MA/2546/2012 JUDGMENT to avoid multiplicity of suits and uncertainties of liabilities, it was considered necessary to choose one of the persons from the staff and make him liable for all the articles or matters published in the paper so that any person aggrieved may sue only the person so named under the provisions of the Press Act and is relieved from the necessity of making a fishing or roving enquiry about persons who may have been individually responsible for the offending matters published in the paper. My opinion in this regard is however re-inforced by the statement, object and reasons accompanying the Press Act which may be extracted thus:-
"Whereas it is expedient to repeal the Indian Press Act, 1910 and the newspapers (Incitements to offences) Act, 1908, and to make further provision in the Press and Registration of Books Act, 1867, for the liability of editors of newspapers in civil and criminal proceedings and to make certain amendments in that Act in order to facilitate the registration of printers and publishers; and to provide in the Sea Customs Act, 1878, the Code of Criminal Procedure, 1898, and the Indian Post office Act, 1898 for the seizure and disposal of certain documents; it is hereby enacted as follows :"
26. It was with this avowed object that the Press Act clearly defines 'Editor` who has a clear legal status under the Press Act. Section 1 (1) of the Press Act defines 'Editor' thus:
"Editor" means the person who controls the selection of the matter that is published in a newspaper".
27. Section 5 of the Press Act provides that no newspaper shall be published except in conformity with the rules hereinafter laid down. Section 5(1) runs thus:-
"Without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly Page 16 of 31 R/CR.MA/2546/2012 JUDGMENT on such copy and also the date of its publication".
28. It would thus be clear that under section 5(1) of the Press Act the legal requirement is that every newspaper shall contain the name of the owner and the editor printed clearly, so that there is no confusion in the minds of the people on this account. Sub-section (2) of section 5 of the Press Act makes it incumbent on the printer and the publisher to appear before the authorities mentioned in that section and make a declaration.
29. Sub-rule (2) of rule 8 of the Rules made under the Press Act runs thus:
"Every copy of every newspaper shall have printed legibly on it the names of the printer, publisher, owner . and editor and the place of its printing and publication in the following form:
Printed by .. ..and published by .... on behalf of ..... . (name of owner) ..... and printed at .... (place of printing) ... and published at .. (place of publication...... Editor ........"
30. This rule enjoins that the name of the printer, publisher, owner and editor must be clearly indicated. The note to this rule is extracted thus:-
"Note: This form may be modified to suit the circumstances of each paper, for example, where The printer, publisher and owner are the same the imprint line can be Printed, published and owned by .. The editor's name, however, should be given separately in every case".
31. This requires that the editor's name however, should be given separately in every case. Rule 6 requires every publisher to submit an annual statement to the Press Registrar. It is not Page 17 of 31 R/CR.MA/2546/2012 JUDGMENT disputed in the present case that this statement was not made by the appellant but by P.W. 2 Aboobaker who was the editor, publisher and printer of Chandrika. The annual statement which has to be filed in form 2 contains one of the columns where the editor's name has to be shown. Section 7 of the Press Act runs thus:-
"In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the editor, a copy of the newspaper- containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall he subscribed to such declaration, or printed on such newspaper as the case may be, that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration or the editor of every portion of that issue of the newspaper of which a copy is produced."
32. Section 8(A) of the Press Act provides that where any person's name has appeared as an editor in a paper although he was not an editor he shall within two weeks of his becoming aware that his name has been so published"
appear before the District, Presidency or Sub-Divisional Magistrate and make a declaration that his name has been incorrectly published and get a certificate from the Magistrate that the provisions of section 7 shall not apply to him.
33. In the case of State of Maharashtra v. Dr. R. B. Chowdhary & Ors. (1967) 3 SCR 708: AIR 1968 SC 110, the Page 18 of 31 R/CR.MA/2546/2012 JUDGMENT Supreme Court observed as follows:
"The term 'editor' is defined in the Act to mean person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor as a person who is responsible for selection of the material section 7 raises presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly as printed as the editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them cut because they had no concern with the publishing of the article in question".
34. This case, therefore, clearly holds that where a person is not shown in the paper to be its editor no such presumption under section 7 of the Press Act can be drawn but it must be held that he has no concern with the publishing of the article.
35. To the same effect is another decision of the Supreme Court in the case of D. P. Misra Kamal Naran Sharma & Ors., (1971) 3 SCR 257: (AIR 1971 SC 856). In this case which was also an election matter a newspaper called Mahakoshal was published from Raipur and one Shukla was registered as the printer, publisher and editor with the Press Registrar. The defence of Shukla was that he had appointed one Tarangi as the editor of Mahakoshal in June 1962 and was not present at the relevant time. The Page 19 of 31 R/CR.MA/2546/2012 JUDGMENT Supreme Court pointed out that the proceedings for naming a person who is found responsible for publication of an offending matter and for constituting a corrupt practice are in the nature of quasi-criminal proceedings. It follows therefore that being a corrupt practice it has to be proved beyond reasonable doubt and not by the measure of preponderance of probabilities. The Supreme Court observed in this connection as follows:
"Section 7 raises a presumption that a person whose name is printed in a copy of a newspaper is the editor of every portion of that issue. The presumption must be re butted by evidence .... The presumption under section 7 of the Press and Registration of Books Act undoubtedly arises, but in a charge under section 123(4) of the Representation of the People Act the presumption under section 7 of the Press and Registration of Books Act, 1867 would come with greater or less force, according to the circumstances to the aid of a person claiming that the editor was responsible for the publication and that the publication was to the knowledge of editor".
"Granting that there was close association between Mishra and Shukla and even granting that Mahakoshal was exclusively carrying on propaganda on behalf of Mishra, unless there is evidence to prove that Shukla had either authorised the publication of the offending matter, or had undertaken to be responsible for all the publications made in the Mahakoshal, no inference that the offending publications were made to the knowledge and with the, consent of Shukla may be raised".
"The statement filed by Shukla is not inconsistent with the case set up by him in this proceeding. Responsibility for publication was accepted by him but he had clearly stated (1) [1971] 3 S. C. R. 257 676 that the publication of news-items from the correspondents were attended to by the Sub-editors and That he generally laid down the policy of the newspaper and gave general directions. He admitted Page 20 of 31 R/CR.MA/2546/2012 JUDGMENT his responsibility because he personally had with knowledge published the article which constituted contempt of Court".
36. I may mention here that in this case Shukla in his statement has clearly stated that the publication of the news- items in the paper were attended to by Sub-editors and he generally laid down the policy of the newspaper and gave general directions. No such allegation or evidence is forthcoming in the instant case because it has neither been alleged nor proved that the appellant was in any way controlling selection of the matters published in the paper.
37. In the case of Harasingh Charan Mohanty v. Surendra Mohanty, (1974) 2 SCR 39; (AIR 1974 SC 47) the Supreme Court pointed out that consent or agency could not be inferred but had to be proved affirmatively like any other fact. In this connection the Supreme Court observed as follows :.-
"Consent or agency cannot be inferred from remote causes. Consent cannot be inferred from more close friend ship or other relationship or political affiliation. As pointed out in D. P. Mishra's case (supra) however close the relationship nection the Court observed as follows :.-
"Consent or agency cannot be inferred from remote causes. Consent cannot be inferred from more close friend ship or other relationship or political affiliation. As pointed out in D. P. Mishra's case (supra) however close the relationship unless there is evidence to prove that the person publishing or writing the editorial was authorised by the returned candidate or he had undertaken to be responsible for all the publications, no consent can be inferred".
38. It was further held in the said case that the presumption Page 21 of 31 R/CR.MA/2546/2012 JUDGMENT under section 7 of the Press Act is a rebuttable presumption and the so called editor can rebut the presumption by showing that he had nothing to do with the publication of the editorial or the news report. In our opinion, even if any presumption is sufficiently rebutted by him not only from the evidence adduced by the appellant but also by the evidence adduced by the petitioner. We shall presently deal with this facet of the matter, namely the factual aspect of this question. The Supreme Court further observed as follows:-
"When once it is established that neither the editorial (ext. 1) nor the news report (Ext. 2) were published by the respondent or by some one else with his consent or that the speech alleged to be made by Biju Patnaik even if it amounts to corrupt practice, was made without the consent of the respondent, and that Biju Patnaik was not his agent. It is unnecessary to consider the question whether the editorial and the news report as well as the speech of Biju Patnaik did in fact constitute corrupt practice under sub section (3) of section 123 of the Act".
39. In Haji C.H. Mohammed Koya vs. T.K.S.M.A Muthukoya, AIR 1979 SC 154, the Supreme Court held as under;
"35. From the facts established above, it is manifest that the petitioner has miserably failed to prove either that the appellant was the editor of the paper or that he was performing the functions. duties or 687 shouldering the responsibilities of the editor. It is obvious that a presumption under section 7 of the Press Act could be drawn only if the person concerned was an editor within the meaning of section l of the Press Act. Where however a person does not fulfill the conditions of section 1 of the Press Act an(l does not perform the functions of an editor whatever may be his description or designation the provisions of the Press Act would have no Page 22 of 31 R/CR.MA/2546/2012 JUDGMENT application. In these circumstances, therefore, the High Court had no legal justification to draw a presumption against the appellant under section 7 of the Press Act in holding that he was proved to be the editor of Chandrika and! therefore, must be deemed to be aware of the articles published in the said paper. Even if, for the sake of argument, it is assumed that the appellant was the editor it has been pointed out by this Court that the presumption to be drawn under section 7 of the Press Act is rebuttable and the evidence and the circumstances of this case discussed above show that this presumption has been sufficiently rebutted.
36. The next question that arises for consideration is that if the finding of the High Court on this point is rejected as it must be then can the petitioner be liable for the materials or speeches published in the paper Chandrika. The publication of the materials promoting hatred between two classes of citizens is undoubtedly a corrupt practice and` it is well settled by long course of decisions of this Court that such practices must be clearly alleged with all the necessary particulars and proved not by the standard of preponderance of probabilities but beyond reasonable doubt. We are fortified in our view by the decision of this Court in the case of Mohan Singh v. Bhanwar Lal & Ors.(1) where this Court observed as follows:-
"The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit, the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous."
To the same effect is a decision of this Court in the case of Magraj Patodia v. R. K. Birla & Ors. [1971] 2 S.C.R. 118:
(AIR 1971 SC 1295) where this Court observed as follows "But the fact remains that burden of proving the commission of the corrupt practice pleaded is on the petitioner and he has to discharge that burden Page 23 of 31 R/CR.MA/2546/2012 JUDGMENT satisfactorily. In doing so he cannot depend on preponderance of probabilities. Courts do not set at naught the verdict of the electorate except on good grounds".
37. ln the case of D. Venkata Reddy v. R. Sultan & Ors. (1976) 3 SCR 445: (AIR 1976 SC 1599) this Court after reviewing most of the previous decisions of this Court observed as follows:-
"In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. lt is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results t cannot be lightly brushed aside in election disputes. ........ Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practice being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt".
In the case of Ramanbhai Nagjibhai Patel v. Jaswantsingh Udesingh Dabhi & ors. A. I. R. 1968 SC 1162. this Court observed as follows:-
"We may state that the charge of bribery is in the nature of a criminal charge and has got to be proved beyond doubt. The standard of proof required is that of proving a criminal or a quasi-criminal charge. A clear- cut evidence, wholly ! credible and reliable is required to prove the charge beyond doubt. Evidence merely probabilising and endeavouring to prove the fact on the basis of preponderance of probability is not sufficient to establish such a charge".Page 24 of 31
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38. In the light of these decisions we shall now proceed to decide the next question. In view of our finding that the appellant has not been proved to be the editor of the paper Chandrika Ext. P. 2 to P. 11 excepting Ext. P. 5 will have to be totally excluded from consideration because those are speeches and articles of various persons published in Chandrika and the constructive knowledge of this has been ascribed to the appellant by virtue of the allegation that he was the editor of the paper. As however this has not been proved it was incumbent on the petitioner to prove knowledge of these articles or speeches like any other fact. The admitted position appears to be that neither the writer of the article nor the speaker who delivered the speech nor the reporter nor even the manuscripts of the speeches have been produced before the Court. In these circumstances, therefore, all these articles and speeches are inconsequential until they are shown to have been made with the knowledge and consent of the appellant. Even in the pleading the petitioner has not averred that the appellant had any independent knowledge of these things or that these speeches or articles were written with his express or implied consent. The petitioner has based his case entirely on the footing that as the appellant was the editor he must be deemed to be aware of these articles and speeches and if the speeches contained offending matters and promoted hatred and ill will between two classes of citizens the appellant must be deemed to have committed the corrupt practice under section l 23 (3A) of the Act. As the entire edifice built by the petitioner for the admissibility of Ex. P. 2 to P. ll except P. 5 collapses, the allegation of the petitioner on this score is clearly disproved. Moreover, we are fortified in our view by the decision of this Court in the case of Samant N. Balakrishna etc. v. George Fernandez Ors. etc. (1) where this Court observed as follows:-
"The best proof would have been his own speech or some propaganda material such as leaflets or pamphlets etc but none was produced .. A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well- known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get Page 25 of 31 R/CR.MA/2546/2012 JUDGMENT perverted or garbled. Such news items cannot be said to prove them selves although they may be taken into account with other evidence if the other evidence is forcible".
40.. The following facts are not in dispute;
40.1 The applicant herein is the publisher, printer and owner of the newspaper and the newspaper does not mention the applicant as the editor of the Divya Bhashkar.
40.2 The complainant has not specifically pleaded in his complaint the nature of the duties performed or responsibilities shouldered by the applicant as the owner of the newspaper.
40.3 There is no averment, at all, in the complaint that the applicant controls the selection of the matter that is published in the newspaper which alone would make him an editor as defined in section 1(1) of the Press Act.
41. In such circumstances, referred to above, I am of the view that the court of the learned Magistrate was not justified in law in issuing process to the applicant herein for the alleged offence.
42. In Mohd. Abdullakhan vs. Prakash K., (2018) 1 SCC 615, the Supreme Court observed that where defamatory matter is printed in a newspaper or a book etc. and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination. Even if any vicarious liability is to be fastened on the owner, appropriate Page 26 of 31 R/CR.MA/2546/2012 JUDGMENT averment should be there in the complaint. In the absence of specific averment in the complaint, only by virtue of the fact that the accused is the owner of the newspaper in which the defamatory article came to be published, by itself, would not be sufficient to put him on trial for the offence of defamation. Let me quote few relevant observations of the Supreme Court made in the case of Mohd. Abdullakha (supra);
"17. Whether the content of the appellant's complaint constitutes an offence punishable under any one or all or some of the above mentioned sections was not examined by the High Court for quashing the complaint against the respondent. So we need not trouble ourselves to deal with that question. We presume for the purpose of this appeal that the content of the appellant's complaint does disclose the facts necessary to establish the commission of one or all of the offences mentioned above. Whether there is sufficient evidence to establish the guilt of the respondent for any one of the above mentioned three offences is a matter that can be examined only after recording evidence at the time of trial. That can never be a subject matter of a proceeding under Section 482 Cr.P.C.
18. From the judgment under appeal, it appears that before the High Court it was argued on behalf of the respondent that there is no vicarious liability in criminal law and therefore the owner of a newspaper cannot be prosecuted for the offences of defamation. "2. The learned counsel for the petitioner would point out that there can be no vicarious liability insofar as the criminal law is concerned. The complainant's allegation of the defamatory material published in the newspaper against him, even if it is established, can only be sustained against the editor of the newspaper and not the owner of the newspaper. The petitioner admittedly was the owner. The newspaper carries a legend that the newspaper is edited and published on behalf of the petitioner and there is no dispute in this regard."Page 27 of 31
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19. It appears from para 3 of the judgment that the appellant herein submitted in response to the above extracted contention of the respondent that the question is no longer res integra and is covered by a judgment of this Court in K.M. Mathew v. K.A. Abraham & Others.
The High Court rejected the submission holding: ".......it is however noticed that the said decision was in respect of a managing editor, resident editor or a chief editor of respective newspaper publications, who were parties therein. Therefore, at the outset, it can be said that the said case could be distinguished from the case on hand, as, the petitioner is not claiming as an editor, who had any role in the publication of the newspaper. Therefore, it is a fit case where the petition should be allowed." The High Court concluded that prosecution of the respondent would lead to miscarriage of justice. A conclusion without any discussion and without disclosing any principle which forms the basis of the conclusion.
FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW'S CASE:
20. K.M. Mathew was the "Chief Editor" of a daily called Malayalam Manorama. When he was sought to be prosecuted for the offence of defamation, he approached the High Court under Section 482 Cr.P.C. praying that the prosecution be quashed on the ground that Section 7 of the Press and Registration of Books Act, 1867 only permits the prosecution of the Editor but not the Chief Editor. The High Court rejected the submission.
21. Even before this Court, the same submission was made.3 This Court rejected the submission holding: "16. The contention of these appellants is not tenable.
There is no statutory immunity for the Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control."
It was further held that though the presumption under Section 7 of the Press and Registration of Books Act, 1867 is not applicable to somebody whose name is printed in the newspaper as the Chief Editor, the complainant can still allege and prove that persons other than the Editor, if they are responsible for the Page 28 of 31 R/CR.MA/2546/2012 JUDGMENT publication of the defamatory material.
"20. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper."
22. K.M. Mathew's case has nothing to do with the question of vicarious liability. The argument in K.M. Mathew's case was that in view of Section 7 of the Press and Registration of Books Act, 1867 only the Editor of a newspaper could be prosecuted for defamation. Such a submission was rejected holding that Section 7 does not create any immunity in favour of persons other than the Editor of a newspaper. It only creates a rebuttable presumption that the person whose name is shown as the editor of the newspaper is responsible for the choice and publication of the material in the newspaper. K.M. Mathew's case made it clear that if a complaint contains allegations (which if proved would constitute defamation), person other than the one who is declared to be the editor of the newspapers can be prosecuted if they are alleged to be responsible for the publication of such defamatory material.
23. The High Court, in our opinion, without examining the ratio of K.M. Mathew's case chose to conclude that the decision is distinguishable. The judgment of the High Court is absolutely unstructured leaving much to be desired.
24. Vicarious liability for a crime is altogether a different matter. In England, at one point of time, the owner of a newspaper was held to be vicariously liable for an offence of defamation (libel). The history of law in this Page 29 of 31 R/CR.MA/2546/2012 JUDGMENT regard is succinctly stated by Lord Cockburn in R V. Holbrook. Though there appears to be some modification of the law subsequent to the enactment of Lord Campbell's Act i.e. the Libel Act 1843 (6&7 Vict C 96). Lord Campbell's Act did not apply to India. The Press and Registration of Books Act (25 of 1867) is made applicable to British India and continues to be in force by virtue of the declaration under Article 372 of the Constitution of India. There are material differences between the scheme and tenor of both the enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad 692, it was held:
"... But we cannot hold that the provisions of that Statute (Ed.Lord Campbell's Act) are applicable to this country, and we must determine whether the accused is or is not guilty of defamation with reference to the provisions of the Indian Penal Code. We consider that it would be a sufficient answer to the charge in this country if the accused showed that he entrusted in good faith the temporary management of the newspaper to a competent person during his absence, and that the libel was published without his authority, knowledge or consent. As the Judge has, however, misapprehended the effect of Act 25 of 1867, we shall set aside the order of acquittal made by him and direct him to restore the appeal to his file, to consider the evidence produced by the accused and then to dispose of the appeal with reference to the foregoing observations."
and reiterated in Emperor v. Bodi Narayana Rao (1909) ILR 32 Mad 338:
"Lord Campbell's Act, of course, is not in force in India, and the Criminal Law of England is not necessarily the same as the Criminal Law of India as contained in the Indian Penal Code ..."
25. The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation are neither discussed by the High Court in the judgment under appeal nor argued before us because the respondent neither appeared in person nor through any advocate. Therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to Page 30 of 31 R/CR.MA/2546/2012 JUDGMENT print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the above mentioned activities is carried on by persons employed by the owner.
26. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.
27. Each case requires a careful scrutiny of the various questions indicated above. Neither prosecutions nor the power under Section 482 CrPC can be either conducted or exercised casually as was done in the case on hand."
43. In the overall view of the matter, I have reached to the conclusion that the order of process issued to the applicant herein deserves to be quashed.
44. In the result, this application succeeds and is hereby allowed. The proceedings of the Criminal Case No..1453 of 2008 in the court of the learned Judicial Magistrate, First Class, Visnagar is hereby quashed so far as the applicant herein (original accused No.4) is concerned. The case shall proceed further expeditiously in accordance with law so far as the other co-accused are concerned.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 31 of 31